Play tells of Victoria man's trial and how a jury wouldn't condemn him for being gay

In 1860, John Butt, an openly gay Victoria man, faced a possible death sentence for his sexual orientation.

However, in a remarkable occurrence for the time, the jury refused to convict him and was later jailed for failing to do so.

Butt's trial is the subject of A Queer Trial, a new musical being staged in Victoria by playwright and UVic assistant professor Jennifer Wise.

"John Butt was a very flamboyant individual, he was kind of a lovable ne'er-do-well, and everybody at that time knew him in 1860 Victoria, and it seems that everybody had some comical story about him," Jennifer Wise, playwright and UVic assistant professor, told All Points West host Robyn Burns.

Wise says Butt was arrested when a "young thug" from England, William Williams, who would later commit assaults against women in the Cariboo, gave a sworn statement that Butt was gay and sexually assaulted him.

The fact that he was gay could have sent him to the gallows on its own.

No evidence, doctor testified

Wise says the jury did not seriously consider the sexual assault charge. A doctor who examined Williams immediately after the alleged incident testified there was no evidence for his claim and jurors agreed while Butt was gay, he was not a rapist.

She says accusations of homosexual acts were a common avenue of extortion at this time and Butt testified at the time the whole thing was a plot for Williams to blackmail him.

At trial, five of the 12-person jury, which included two Jewish men and a black man from California who experienced discrimination in that state before coming north, refused to convict Butt on any charge.

Wise says that left the judge frustrated, as there was a great deal of evidence that Butt was indeed gay. So he sent the jury to jail for a day in an attempt to change their minds.

It didn't work, and a second jury also refused to convict.

All of this took place in what is now Bastion Square, and that is where Wise and her actors, UVic students, will stage their performance.

"There's something exhilarating for audiences seeing a true historical event being brought to life on the very piece of earth where the events took place originally," she said. "That was important to us: to bring this amazing moment of Victoria history to life as fully as we could."

A Queer Trial will be performed April 14 at 2 and 4 p.m. PT.

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With files from CBC Radio One's All Points West